THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
AND
THE HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
CIVIL MISCELLANEOUS APPEAL No.438 OF 2022
JUDGMENT: (Per Hon'ble Dr. Justice Shameem Akther)
This Civil Miscellaneous Appeal, under Order XLIII Rule 1 of
CPC, is filed by the appellant/plaintiff No.3, challenging the order,
dated 29.07.2022, passed in I.A.No.98 of 2020 in O.S.No.8 of
2020 by the XXVII Additional Chief Judge, City Civil Court,
Secunderabad, whereby, the subject application filed by the
appellant/plaintiff No.3 and respondent Nos.8 and 9 herein/plaintiff
Nos.1 and 2 under Order XXXIX Rules 1 and 2 of CPC seeking the relief of temporary injunction restraining the respondent Nos.1 to 7 herein/defendants, their agents etc., from interfering with the peaceful possession and enjoyment of the petition schedule property, pending disposal of the suit, was dismissed.
2. We have heard the submissions of Sri V.Ravi Kiran Rao, learned senior counsel, appearing for Sri V.Rohit, learned counsel for the appellant/plaintiff No.3, Mr. Mohammed Imran Khan, learned senior counsel, appearing for Sri G.Madhusudhan Reddy, learned counsel for the respondent Nos.1 to 7/defendants and perused the record.
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3. For convenience of discussion, the parties are hereinafter referred to, as per their array in the subject I.A.No.98 of 2020 before the Court below.
4. Learned senior counsel appearing for the appellant/plaintiff No.3 would contend that the findings recorded and the conclusions reached by the Court below are perverse and contrary to the settled legal position in relation to grant of temporary injunction order, pending disposal of the suit. The subject suit in O.S.No.8 of 2020 was filed on 27.01.2020 to declare that the registered sale deeds bearing document Nos.2785/2007 dated 13.12.2007, 2885/2007 dated 31.12.2007, 2814/2007 dated 19.12.2007, 2750/2007 dated 10.12.2007, 2789/2007 dated 14.12.2007 and 2817/2007 dated 19.12.2007 executed by late V.Ravi Raju in favour of defendant Nos.1 to 6 respectively are not binding on the plaintiffs and to grant perpetual injunction restraining the defendant Nos.1 to 7, their agents, supporter, henchmen, legal heirs etc., or any other persons from interfering with peaceful possession and enjoyment of plaintiffs over the suit schedule property in any manner without following due course of law. During the pendency of the suit, the plaintiffs filed several documents to show that they have lawful title and possession over the suit schedule land. There are no documents to show that the 3 Dr.SA,J & NBK,J CMA No.438 of 2022 defendants are having lawful title and possession over the suit schedule land. The defendants are claiming title from one V.Ravi Raju, who is none other than the brother of the plaintiffs. However, V.Ravi Raju has no absolute right to alienate the suit schedule land. The sale deeds executed by said V.Ravi Raju in favour of the defendants are not supported by any consideration and no possession was delivered under those sale deeds. Mr.V.Ravi Raju even filed suits in O.S.Nos.180, 181, 182, 183, 184 and 192 before the Court below against the defendant Nos.1 to 6 for cancellation of those sale deeds on the ground that they were obtained fraudulently without paying sale consideration. However, the said suits were dismissed. Aggrieved by the same, V.Ravi Raju preferred appeals in CCCA Nos.174/2018, 175/2018, 181/2018, 184/2018, 192/2018 and 195/2018 before this Court, which are pending before this Court. Furthermore, in Execution Application, the Court concerned held that the plaintiffs are in joint possession and enjoyment of the subject property admeasuring 5716.64 square yards. There are several documents to the credit of the plaintiffs to substantiate their lawful ownership and possession over the suit schedule land. Though the plaintiffs have made out prima facie case for grant of interim injunction and the balance of convenience is in their favour and established that they would 4 Dr.SA,J & NBK,J CMA No.438 of 2022 suffer irreparable injury if injunction is not granted in their favour, the Court below, without properly appreciating the facts and the legal position obtaining, erroneously dismissed the subject application and ultimately prayed to allow the appeal as prayed for.
5. Per contra, learned senior counsel appearing on behalf of the respondent Nos.1 to 7 herein/defendants would submit that in the appeals preferred by V.Ravi Raju against the dismissal of the suits filed by him, this Court did not grant any interim relief in favour of the plaintiffs. There are registered sale deeds to the credit of the defendants in respect of 2104 square yards out of the suit schedule land admeasuring 5716.64 square yards. Even in the suits filed by V.Ravi Raju, he has not denied the alienation made by him in favour of defendant Nos.1 to 6. He admitted the averments of the sale deeds. In fact, V.Raju Raju, during his life time, was bequeathed the suit schedule land by way of a Will Deed, dated 06.06.1991, by his father V.Kumara Swamy. V.Ravi Raju died on 15.02.2019. He was the absolute owner and possessor of the suit schedule land and he conveyed lawful title and possession of the same in favour of the defendants under registered sale deeds. The property covered by the sale deeds marked as Exs.R3 to R8 is open land, i.e., house plots and the 5 Dr.SA,J & NBK,J CMA No.438 of 2022 defendants are in continuous possession and ownership of the same from the date of purchase, as indicated in the aforementioned registered sale deeds. The plaintiffs neither made out a prima facie case to grant interim injunction in their favour nor established that balance of convenience is in their favour. The Court below, having meticulously analysed the evidence on record, arrived at a conclusion that the plaintiffs failed to make out a prima facie case to grant interim injunction and consequently, dismissed the subject application. The Court below is justified arriving at the said conclusion. There are no circumstances to interfere with the order under challenge and ultimately prayed to dismiss the appeal.
6. In view of the above rival submissions, the points that arise for determination in this appeal are as follows:
1. Whether the appellant/plaintiff No.3 has made out a prima facie case to grant interim injunction in his favour?
2. Whether the balance of convenience is in favour of the appellant/plaintiff No.3 to grant the relief sought in the subject I.A.No.98 of 2020 in O.S.No.8 of 2020?
3. Whether irreparable injury would be caused to the appellant/plaintiff No.3 in the event of refusal to grant injunction?
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4. Whether the order and decretal order of the Court below impugned in this appeal are liable to be set aside?
5. To what relief?
POINTS:
7. Ordinarily, the three main principles which govern the grant or refusal of injunction are (a) prima facie case; (b) balance of convenience; and, (c) irreparable injury. In grant and refusal of injunction, pleadings and documents play vital role. In the broad category of prima facie case, it is imperative for the Court to carefully analyse the pleadings and the documents on record and only on that basis the Court must adjudge the existence or otherwise of a prima facie case. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the plaintiffs, if the injunction is refused and compare it with that it is likely to be caused to the other side if the injunction is granted. Only on weighing competing possibilities or probabilities of likelihood of injury, an injunction would be granted. The Court should not interfere only because the property is a very valuable one. In dealing with such matters, the Court must make all endeavours to protect the 7 Dr.SA,J & NBK,J CMA No.438 of 2022 interest of the parties by balancing the conveniences and inconveniences. In addition to the basic principles, temporary injunction, being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the Court with clean hands.
8. In the instant case, there are sale deeds, as indicated above, under Exs.R3 to R8, which demonstrate that the defendants have purchased a part of the suit schedule land from the brother of the plaintiffs, i.e., V.Ravi Raju. Mr.V.Ravi Raju also had not denied the execution and registration of sale deeds in favour of defendant Nos.1 to 6, in the aforementioned suits filed by him before the Court below. His contention in the aforementioned suits filed by him before the Court below was only that sale consideration was not paid and that the sale deeds were obtained by playing fraud and coercion. The said contention was negated by the Court below vide separate orders and decrees dated 09.04.2018, passed in O.S.Nos.181 and 183 of 2010, marked as Exs.R1 and R2 respectively, holding that the sale deeds were not executed by coercion or without payment of consideration and the sale deed was acted upon. Further, aggrieved by the dismissal of the aforementioned suits by the Court below, V.Ravi Raju preferred appeals before this Court vide CCCA Nos.174/2018, 175/2018, 8 Dr.SA,J & NBK,J CMA No.438 of 2022 181/2018, 184/2018, 192/2018 and 195/2018, which are pending before this Court, and he was unsuccessful in obtaining any interim order in the said appeals during his life time.
9. Learned senior counsel appearing for the plaintiffs contended that the plaintiffs were living at different places and therefore, they were not aware of filing of the aforementioned appeals before this Court by their brother V.Ravi Raju and that after the death of their brother only, the defendants started interfering with their possession and enjoyment over the suit schedule land due to which they are constrained to file the subject suit in O.S.No.8 of 2020 before the Court below along with the subject interlocutory application. It is pertinent to state that so far, the plaintiffs have not challenged the Will Deed, dated 06.06.1991, executed by the father of the plaintiffs in favour of their brother V.Ravi Raju bequeathing the suit schedule land. The sale deeds under Exs.R3 to R8 were executed by V.Ravi Raju in favour of the defendant Nos.1 to 6 in the year 2007 and the plaintiffs filed the subject suit in the year 2020 after the demise of V.Ravi Raju, contending that after the demise of V.Ravi Raju, the defendants started interfering with their peaceful possession and enjoyment over the suit schedule land. Hence, it is difficult to sustain the said contention of the learned senior counsel for the appellant/plaintiff No.3. The 9 Dr.SA,J & NBK,J CMA No.438 of 2022 said aspect is required to be determined after full-fledged trial of the subject suit in O.S.No.8 of 2020. As there are registered sale deeds in favour of the defendant Nos.1 to 6 executed and registered by the brother of the plaintiffs V.Ravi Raju during his life time, it cannot be held that the appellant/plaintiff No.3 has made out a prima facie case to grant interim injunction in his favour.
10. Learned senior counsel for the appellant/plaintiff No.3 also contended that the Court below, having granted ex parte interim injunction on 31.01.2020 protecting the possession of the plaintiffs over the suit schedule land, heard the subject interlocutory application after a lapse of two and half years and passed the impugned order dismissing the application, which is totally illegal, unjust and unsustainable in the eye of law. Mere delay in deciding the subject application by the Court below cannot be a ground to vary the impugned order, which is otherwise decided on merits. Hence, we find no force in the said contention of the learned senior counsel.
11. Learned senior counsel appearing for the appellant/plaintiff No.3, taking us through the report, dated 18.07.2021, lodged with Chilkalguda Police Station by defendant No.2 against the appellant/plaintiff No.3 and another, contended that there is no mention in the said report that the defendants are in possession of 10 Dr.SA,J & NBK,J CMA No.438 of 2022 part of the suit schedule land. Here, it is apt to state that the suits filed by the brother of the plaintiffs V.Ravi Raju, were dismissed by the Court concerned, vide judgment and decree, dated 09.04.2018 and in the appeals preferred before this Court challenging the dismissal of the said suits, V.Ravi Raju was unsuccessful in obtaining any interim order in his favour. Hence, it is also not appropriate to hold that the plaintiffs are in possession of the suit schedule land. Moreover, the issue as to who is in possession of the suit schedule land can only be decided after full-fledged trial of the suit. Furthermore, even the findings recorded by a criminal court do not have any bearing on the findings recorded by a civil Court and vice versa, since the standard of proof in criminal proceedings and civil proceedings is completely different. In view of the circumstances, the conduct of the plaintiffs is not free from suspicion and they did not approach the Court below with clean hands. There is suppression of material facts also.
12. Under these circumstances, we are in agreement with the finding recorded by the Court below that that the plaintiffs failed to establish a prima facie case and also the other requirements for granting temporary injunction order in their favour. When the first factor, namely, prima facie case, which is sine qua non, is not satisfied, it follows that the appellant/plaintiff No.3 is not entitled 11 Dr.SA,J & NBK,J CMA No.438 of 2022 to the equitable relief of temporary injunction. The Civil Miscellaneous Appeal is lacking merits and is liable to be dismissed.
13. Accordingly, the Civil Miscellaneous Appeal is dismissed. It is made clear that this Court has not expressed any opinion on the merits of the issues/questions that fall for determination in the subject suit. Hence, the Court below shall dispose of the subject suit uninfluenced by the observations made hereinabove, which are made for the limited purpose of disposal of this Civil Miscellaneous Appeal.
Miscellaneous petitions, if any, pending in this appeal shall stand closed. There shall be no order as to costs.
______________________ Dr. SHAMEEM AKTHER, J _______________________ NAGESH BHEEMAPAKA, J 12th October, 2022 Note:-
Mark LR Copy.
(B/O) BVV